Geys, a managing director in the London office of
Société Générale (SG) was summarily
dismissed in November 2007, in breach of the terms of his
employment contract. SG did pay an amount into Geys's bank
account in lieu of notice in December 2007, but was also obligated
to make a 'compensation payment' on termination. If Geys
was terminated on or after 31 December 2007, the compensation
amount would reflect entitlements arising from 2006 and 2007; if
before, it would be assessed at a much lower figure reflecting 2005
and 2006. Geys's solicitors wrote to SC in January 2008 saying
that he had decided to affirm the repudiated contract; the bank
exercised its contractual termination rights in reply.
The trial judge held that the bank had terminated the contract
only once it communicated with Geys in January 2008. The Court of
Appeal disagreed, saying that the termination had occurred when the
payment in lieu of notice had been made in December 2007. SG argued
that termination had occurred in November 2007 when it repudiated
the contract. The UK Supreme Court was faced with the question
whether repudiation of an employment contract automatically
terminates it or whether the traditional contract rule would apply,
which provides that a wrongful repudiation is effective only once
accepted by the non-repudiating party: Geys v Société
Générale London Branch,  UKSC 63. The majority
of the court (Lord Sumption dissenting, except on two specific
points of contractual interpretation) held that the elective rather
than the automatic view should apply, as with other kinds of
contract; to say that repudiation has the immediate effect of
terminating the contract would provide an incentive to wrongful
repudiators. The majority concluded that Geys had not been
terminated until SG exercised its rights in accordance with the
contract in January 2008. The mere fact that it had made a payment
into Geys's account in December 2007 was not sufficient notice
of termination; it is not up to an employee to keep checking his or
her bank account to see if he or she is still employed.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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